Free-Speech Case Against Fresno State Revived

SAN FRANCISCO (CN) – Fresno State University must face First Amendment claims for disciplining a politically outspoken student who confronted two professors about a poem published in the student newspaper that contained controversial lines about the United States, the Ninth Circuit ruled Thursday. A three-judge panel found that while Neil O’Brien was subject to the discipline imposed by the university for videotaping his confrontations with the two professors, a dispute remains as to whether the university imposed that discipline as retaliation for O’Brien’s political speech. O’Brien, who describes himself as a “constitutional conservative,” formed the Fresno chapter of the student organization Young Americans for Liberty, organized events for the Central Valley Tea Party, and frequently attended student government meetings while a student at Fresno State, according to the panel’s 31-page ruling. He soon became an outspoken critic of the university’s faculty and administration, objecting to their support for the student body president, who was an undocumented immigrant. O’Brien created a website on which he posted information about the student body president and criticized Fresno State’s separate graduation ceremony for Latino students. In May 2011, O’Brien was upset by a poem in “La Voz de Aztlan,” a supplement to the Fresno State student newspaper published by the Chicano and Latin American Studies Department. O’Brien objected to the way in which the poem characterized the United States, which included calling it “the land robbed by the white savage” and the “place of greed and slavery,” according to the ruling. Taking a video camera with him, O’Brien separately approached two professors – defendants Dr. Maria Lopes and Dr. Victor Torrres – in their offices to confront them about the poem. While videotaping, O’Brien asked the professors whether they had approved the poem’s publication. Both professors refused to answer, and both called and filed complaints with the campus police. The university held a judicial hearing on the incident and ultimately found that O’Brien had violated California Student Conduct Code, which authorizes disciplinary sanctions for student conduct that “threatens or endangers the health or safety of any person including physical abuse, threats, intimidation, harassment, or sexual misconduct,” the ruling said. Fresno State imposed sanctions that prohibited O’Brien from coming within 100 feet of the Chicano and Latin American Studies Department’s faculty, staff, offices or classrooms, and also placed him on “disciplinary probation” through the spring 2012 semester. As a consequence of the probationary status, O’Brien was prohibited by university rule from being president or treasurer of the campus chapter of Young Americans for Liberty and from holding any position in student government. O’Brien’s civil rights lawsuit was thrown out by U.S. District Judge Anthony Ishii for failure to show that the professors’ complaints and the disciplinary hearing were motivated by retaliation for the content of Obrien’s speech, rather than for O’Brien’s violation of the student code regulation. The Ninth Circuit panel agreed with Ishii that O’Brien’s actions were subject to university discipline, finding that professors at work in their personal offices “do not generally expect to be confronted without warning by a student asking hostile questions and videotaping” and, therefore, the two professors in this case may have reasonably been concerned for their safety, the panel found. However, the panel disagreed with Ishii that O’Brien did not provide sufficient evidence to show the possibility of a retaliatory motive for the discipline. Writing for the panel, Circuit Judge William Fletcher said that O’Brien alleged facts showing that he engaged in speech and conduct protected by the First Amendment in the months leading up to the May 11, 2011 confrontation with the professors. Those protected activities included his website posts opposing the student body president and several public records requests he made to the university seeking information on administrator salaries and other issues. “We disagree that only ‘rank speculation’ supported O’Brien’s contention that the disciplinary proceedings and sanctions were retaliatory,” Fletcher said, pointing to the former student’s accusation that assistant dean of student affairs Dr. Carolyn Coon requested students and other faculty members gather information and complaints to use against O’Brien. O’Brien also says that the director of alumni relations sent emails to other administrators, including the university’s communications director, requesting that they “do something” about O’Brien and his website. Furthermore, O’Brien claims that he was not given a full and fair opportunity to present his side of the story at the disciplinary hearing and that the hearing officer refused to even look at his videotape of the incident. The former student also says that university officials continued to impede him even after the sanctions were imposed by deleting posts he made on university-managed Facebook pages and permanently blocking him from posting about certain issues, while allowing posts expressing left-leaning viewpoints to remain. “Considered altogether, the foregoing is enough to support the claim that O’Brien’s ‘protected activity was a substantial or motivating factor in the defendant[s’] conduct’ in conducting disciplinary proceedings and imposing sanctions,” Fletcher said. O’Brien’s allegations could reasonably support a conclusion that “faculty members and administrators at Fresno State not only disagreed with the expressed political views of O’Brien, but also sought to punish and muzzle him in retaliation for his expression of those views,” the judge said. However, Fletcher cautioned against reading too much into the panel’s opinion, pointing out that the First Amendment “does not give a free pass to students who violate university rules simply because they can plausibly show that faculty or administrators disapprove of their political views.” “Specifically, our holding is by no means intended to protect from discipline students whose speech or conduct may reasonably be seen as threatening or constituting a danger to members of the university community,” the judge said. The panel remanded the case to Ishii for consideration of O’Brien’s First Amendment claims against the majority of the defendants, but held that O’Brien had not stated sufficient facts to state a claim against then-university president Dr. John Welty. Fletcher called Welty a peripheral figure “with insufficient connection to the critical events to be held responsible for actions taken against O’Brien.” O’Brien’s attorney, Brian Leighton, took issue with that portion of the ruling, saying that Welty was “the one in charge of all the things that went on against O’Brien.” Among other things, Welty was the one who approved the decision to put O’Brien on probation and was the one who made the decision that Leighton could not attend O’Brien’s judicial hearing, Leighton told Courthouse News. O’Brien’s attorney was also disappointed with the panel’s refusal to reassign the case to a different district judge on remand. He told Courthouse News that Ishii has a conflict of interest because Welty had hired Ishii’s wife for a highly paid position at the university. “I hope Judge Ishii recuses himself,” Leighton said. The attorney said that he hopes to take the case to trial and prevail, especially considering the videotapes of O’Brien’s encounters with the professors show that there was no harassment or intimidation. “The two professors make it sound as though Neil kept ignoring them and ignoring them and was in there for what they described to the police department as many minutes, when it was less than 45 seconds,” he said. The university “retaliated against O’Brien because he voiced a conservative view all the time,” Leighton said. “They didn’t like that. They wanted to shut him down and punish him. If he was voicing liberal points of view, then nothing would have ever happened.” An attorney for the defendants did not immediately return a request for comment sent Thursday afternoon.